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Fox v. New Britain General Hospital

CASE NO. 4414 CRB-6-01-7



AUGUST 6, 2002











The claimant was represented by Paul Ranando, Esq., Dodd, Lessack, Ranando & Dalton, L.L.C., Westgate Office Center, 700 West Johnson Avenue, Suite 305, Cheshire, CT 06410.

The respondents were represented by Ralph A. Russo, Esq., 49 Welles Street, Suite 212, Glastonbury, CT 06033.

This Petition for Review from the June 29, 2001 Finding and Award of the Commissioner acting for the Sixth District was heard February 22, 2002 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Donald H. Doyle, Jr. and Amado J. Vargas.


JOHN A. MASTROPIETRO, CHAIRMAN. The respondents have petitioned for review from the June 29, 2001 Finding and Award of the Commissioner acting for the Sixth District. On appeal, they assert that the trier erred by finding that the claimant’s left hip symptoms were related to an August 28, 1998 compensable injury, rather than to other causal factors, by finding that she was entitled to several months’ worth of temporary partial disability benefits, and by ordering a bone scan, an MRI, and a functional capacity evaluation. We affirm the trial commissioner’s decision.

The claimant had worked as a registered nurse for the respondent New Britain General Hospital for some time prior to August 28, 1998. Her left hip injury on that date was accepted as compensable by her employer via an approved voluntary agreement dated September 29, 1999. In a subsequent voluntary agreement dated November 29, 2000, the employer agreed that the claimant sustained a 5% permanent partial disability to her hip as a result of her work-related injury, and accepted Dr. Froeb as her treating physician. At the hearings below, the claimant testified that Dr. Froeb had performed non-work-related surgery on her left hip on October 7, 1997. She underwent a second hip surgery on October 27, 1998, as a result of her compensable injury, and returned to work on February 28, 1999 on a medical/surgical floor. She worked through May 22, 1999, at which time she took a personal leave of absence that lasted until August 14, 1999, when she returned to her employment. Shortly thereafter, she began to experience left hip pain, and cut back her hours at work somewhat because her duties involved activities that were aggravating her bursitis.

According to Dr. Froeb, he performed his October 1997 operation on the claimant’s left hip after more conservative treatment modalities failed, and followed her care and treatment through February 16, 1998. When he next saw the claimant on September 9, 1998, he diagnosed her with a mild trochanteric bursitis on the left hip. He again tried conservative treatment at first, and resorted to surgery after simpler treatments proved ineffective. This time, he kept the claimant in his care through January 12, 1999, when he noted that she was doing well, was working with Dr. Jacobs at Occupational Healthcare, and had showed no problems with a functional capacity examination that she had been given. Dr. Froeb felt she could work without restrictions as of that date.

The claimant occasionally called his office to obtain prescriptions for non-narcotic pain medication for her hip condition over the course of the next nine months, but did not see Dr. Froeb again until October 11, 1999. At that time, she was again experiencing pain in her left trochanteric area, especially when working. He testified that there was nothing more that he could do for her, and gave her the names of three different orthopedic surgeons she could see for a second opinion. He also testified that she was capable of continuing to work as a nurse for New Britain General Hospital through December 10, 1999, as he did not feel that her work duties were substantial factors in the case of her current problems.

Dr. Jacobs testified that, based upon the claimant’s functional capacity exam results, her history and the results of her physical examination, she was capable of returning to her regular duties, including a normal eight-hour shift, as of January 27, 1999. She diagnosed the claimant as having bursitis and tendonitis of the left hip. Dr. Schutzer, an independent medical examiner, saw the claimant on January 18, 2000. His was one of the names provided to the claimant by Dr. Froeb. He diagnosed the claimant with “chronic recalcitrant abductor tendinopathy involving the left hip,” which he ascribed to a chronic degenerative condition that had been aggravated by the August 1998 workplace injury. Findings, ¶ 40, 42, quoting Claimant’s Exhibit A. He opined that there was no available treatment to resolve her problem, and recommended that she be referred for another functional capacity evaluation. He suggested that she participate in a daily program of stretching and strengthening, and that she use heat, ice, and over-the-counter inflammatory medication to alleviate her pain. He also stated that an MRI scan and/or bone scan might be helpful for additional evaluation, but would not likely change any of his treatment recommendations. He noted that the claimant had been averaging 32 hours per week at full duty for the respondent, and opined that she had permanent restrictions due to her left hip problems that prevent her from being able to walk for a full eight-hour shift. He also recommended that she avoid repetitive stooping or squatting, and that she not carry or lift more than 25 pounds.

In his Finding and Award, the commissioner determined that the claimant’s testimony was credible, and found the opinions and testimony of Dr. Schutzer more credible than those of Drs. Froeb and Jacobs on the issues of causation, medical treatment and work capacity. He adopted Dr. Schutzer’s opinion that the claimant should not work an eight-hour shift, and found that the claimant was due compensation for diminished weekly earnings from September 11, 1999 to December 3, 1999, and again from January 25, 2000 through March 19, 2000 (following the expiration of the claimant’s 5% permanent partial disability award). The trier also ordered that Dr. Schutzer assume the role of treating physician, and authorized a functional capacity evaluation and an MRI and/or bone scan. The respondents have appealed from the trier’s decision, along with the denial of their Motion to Correct.

We begin by addressing the respondents’ objection to claimant’s award of temporary partial disability benefits. They contend that this award is without support in the evidence, with regard to both the etiology of her symptoms and her work capacity. As the respondents concede, the role of this appellate board is not to retry the facts of a case by drawing our own inferences from the evidence. Mosman v. Sikorsky Aircraft Corp., 4180 CRB-4-00-1 (March 1, 2001). All determinations of evidentiary credibility are left solely to the trial commissioner, who is charged with deciding which of the documentary exhibits and witnesses are the most believable. Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999); Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998). This board may review factual findings only to determine whether there is evidence in the record to support them, and to ensure that the trier has not omitted material facts from his findings that are truly admitted or undisputed. Warren v. Federal Express Corp., 4163 CRB-2-99-12 (Feb. 27, 2001). As for the legal conclusions drawn from those findings, we may disturb them only if they result from an incorrect application of the law, or from an unreasonably drawn inference. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988); Mosman, supra.

The respondents maintain that none of the medical evidence in the record suggests that the claimant’s 1998 compensable injury permanently changed or accelerated the pre-existing degenerative process, which is not work-related and was not cured by the 1998 surgery. They see the claimant’s current condition as being related to the underlying degenerative process rather than the 1998 injury, which they characterize as a symptom of that process whose effects ceased upon the claimant’s recovery from surgery. We disagree, as the trier explicitly and legitimately relied upon Dr. Schutzer’s opinion regarding causation over the opinions of the other doctors, and that opinion contains sufficient information to support the trier’s conclusion.

Dr. Schutzer’s January 18, 2000 report describes the claimant’s condition as “a chronic degenerative tendinopathy which was aggravated by a work incident in August of 1998.” Claimant’s Exhibit A. He explains that she was diagnosed with trochanteric bursitis in April of 1997, which failed to improve with physical therapy or injections, but which did improve following a bursectomy on October 7, 1997. The claimant was able to return to work full-time, though she felt some discomfort and tenderness afterward. Following her workplace hip injury of August 29, 1998, the claimant was again diagnosed with trochanteric bursitis. On this occasion, she developed sharp pain over her left greater trochanter, and sensed a “pop.” After a re-excision of her trochanteric bursa, the claimant did not recover to the same degree, as she had trouble lifting or straining, and she shifted her job duties from the orthopedic unit at New Britain General Hospital to the (presumably) less strenuous pediatrics department. From Dr. Schutzer’s report, it does not appear that the claimant’s condition ever returned to the level it was at prior to her 1998 injury, and her discomfort and difficulties with everyday tasks like climbing stairs and driving have only worsened. The trial commissioner could have reasonably inferred from Dr. Schutzer’s reports that the claimant’s 1998 injury was a significant contributing factor to her current disability, and he did so. We are not empowered to draw a different factual inference on review. Warren, supra; Pallotto, supra.

As for the two awards of temporary partial disability benefits (one pre-specific indemnity, one post-specific indemnity), both legally depend upon the claimant having suffered a loss in her earning capacity as a result of her compensable injury. See § 31-308(a) C.G.S.; § 31-308a C.G.S. The claimant offered evidence to show that she only worked an average of 32 hours per week during the first three-month period of disability, from September 11, 1999 to December 3, 1999. In Dr. Schutzer’s January 18, 2000 report, he states that the claimant is “currently working 32 hours a week, full duty on the medical/surgical floor,” and then notes that she has limitations in her walking abilities, among other things. Claimant’s Exhibit A. In his February 24, 2000 report, he states that she “would be capable of working 40 hours per week, but in a situation where she would not be responsible for lifting/assisting patients in and out of beds or wheelchairs.” Id. Additionally, he adds that “simply walking on the ward during the course of a typical shift seems to be aggravating her hip pain,” and questions whether she would be able to tolerate any type of traditional “floor nursing.” Id. We are untroubled by the fact that these reports postdate the claimant’s period of temporary partial disability by one or two months. It was hardly unreasonable for the trier to conclude that, during the few months leading up to the claimant’s visits with Dr. Schutzer, her diminished work hours were due to these same physical limitations caused by her injury. Thus, we affirm the award of § 31-308(a) temporary partial disability benefits.

As for the § 31-308a award extending from January 25, 2000 through March 19, 2000, the claimant continued to work at her nursing job during that period, but felt herself unable to put in 40 hours per week. Dr. Schutzer’s analysis of her medical condition is directly contemporaneous with this time period, and again offers the same sound support for a finding of temporary partial disability. The respondents raise the point, however, that Dr. Schutzer’s February 24, 2000 report states that the claimant would be capable of working 40 hours per week in a situation that did not involve lifting. Since no showing was made as to whether such a job was available, or what such a job would pay, the respondents argue that the claimant has not fulfilled her statutory burden of demonstrating a loss of earning capacity under § 31-308a, as opposed to simply showing reduced earnings for the relevant two-month time period.

Recently, we discussed this issue in the case of Richardson v. Bic Corporation, 4413 CRB-3-01-7 (August 5, 2002), with respect to a § 31-308(a) claim, and held that the statute requires a finding as to a claimant’s light duty earning capacity before a wage differential may be calculated. However, in Richardson, the claimant was seeking benefits for a two-and-one-half-year period during which she had not worked. Here, the claimant was continuing to work at her previous job, albeit for fewer hours per week because of her medical limitations. Benefits have been awarded in similar cases in the past. See, e.g., Kropf v. Lloyd Davis, D.D.S., 3229 CRB-8-95-12 (Aug. 27, 1997).

Essentially, the trier here was presented with a factual question that required him to decide whether the claimant’s performance of this job adequately demonstrated her earning capacity. It was necessary that he take into account all the circumstances surrounding the instant situation, including the number of hours per week the claimant was managing to work, her salary at New Britain General Hospital, and whether she could reasonably have been expected to look for a replacement job given the situation before her. In this instance, where the claimant was averaging close to 30 hours per week at an established nursing position, it was reasonable for the trier to conclude that the claimant’s performance of this job was indicative of her earning capacity during that relatively brief time period. A claimant is not required to prove that she is maximizing her earning potential in order to qualify for temporary partial disability benefits. Genovesi v. Choice Designs, Inc., 13 Conn. Workers’ Comp. Rev. Op. 218, 1745 CRB-5-93-6 (April 12, 1995). Thus, we find no error in the trier’s award of benefits for the two-month period listed in his award.

Lastly, we reach the respondents’ objection to the trier’s order that they accept financial responsibility for an MRI, bone scan, and a functional capacity evaluation. As we have already affirmed the trier’s finding that the 1998 compensable injury was causally related to the claimant’s current symptoms, there is little basis for further objection to such tests on the part of the respondents. Tests may not constitute the sort of medical treatment that will itself cure a claimant’s ailments, but they are generally necessary in order to evaluate a claimant and determine what course of treatment is the most advisable. Considering our recent holdings in cases such as Irizarry v. Purolator Courier Corp., 4382 CRB-4-01-4 (May 2, 2002), and Cirrito v. Resource Group Ltd. of Conn., 4248 CRB-1-00-6 (June 19, 2001), in which we held that a proposed course of treatment need not have a high likelihood of succeeding in order to constitute “reasonable or necessary” medical treatment under § 31-294d C.G.S., we are not disposed to rule that the trier should have ignored Dr. Schutzer’s recommendation of a functional capacity test and his opinion that “an MRI scan and/or bone scan might be helpful for additional evaluation” on the ground that neither of these proposed courses of conduct is likely to cure the claimant or substantially change her course of treatment. Instead, we hold that the trier properly exercised his factfinding prerogative in ruling that these tests should be performed as a means of better diagnosing the claimant’s condition and of determining her work capacity.

Accordingly, we affirm the trial commissioner’s decision in its entirety. Insofar as benefits may not have been paid pending the outcome of this appeal, interest is awarded as required by the provisions of § 31-301c(b).

Commissioners Donald H. Doyle, Jr. and Amado J. Vargas concur.

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State of Connecticut Workers' Compensation Commission, Stephen M. Morelli, Chairman
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